The D.C. Court of Appeals Undermines the First Amendment

National Review covers the D.C Court of Appeals decision in Michael Mann’s defamation case against the Competitive Enterprise Institute and National Review.

The court dismissed Mann’s claims for intentional infliction of emotional distress, and also dismissed his claims based on an open letter written by our editor-in-chief Rich Lowry taking Dr. Mann to task for threatening to file this bullying lawsuit in the first place. At the same time, the court refused to dismiss the defamation claims against NR and CEI based on blog posts by Mark Steyn and Rand Simberg respectively criticizing Mann’s infamous “hockey stick” graph, which is widely touted as providing lead-pipe cinch scientific proof of man-made global warming.

In refusing to dismiss these claims, the opinion is badly mistaken. Worse, it represents an unprecedented threat to the freedom of speech in our nation’s capital. There’s a reason that a broad coalition of groups including the ACLU, the Washington Post, the Cato Institute, and the Reporters Committee for Freedom of the Press filed briefs in support of NR in the case.

Properly understood, the First Amendment provides broad protection for free expression on matters of political and scientific controversy. It protects vigorous debate not only over the merits but also over the ethics of politically controversial scientific enterprises. In particular, it protects the right of all Americans — scientists, journalists, and even bloggers — to express caustic criticism of scientific theories that purport to resolve hot-button political controversies on matters as sweepingly consequential as the extent and cause of global warming.

The court’s decision yesterday badly neglects these principles. It holds that NR can be subjected to a judicial trial and possible sanctions for publishing a blog post arguing that the infamous “hockey stick” graph is misleading, and that the underlying scientific techniques are so badly deceptive that they deserve to be denounced as a form of misconduct. The court’s decision thus declares open season on anyone who dares to criticize Mann for “molesting and torturing data” and (in the court’s words) engaging in “deception and wrongdoing” or “serious misconduct.” The court’s decision breaks chilling new ground.